Jharkhand High Court
Durga Singh Aged About 48 Years Son Of ... vs The State Of Jharkhand on 15 February, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 742 of 2022
Durga Singh aged about 48 years son of late Saraju Singh, resident of
Qr. No. 55/7, Railway Traffic Colony, behind Shiv Mandir, P.O.
Tatanagar, P.S. Bagbera, Town Jamshedpur, District East Singhbhum
... ... Petitioner
Versus
1. The State of Jharkhand
2. Sima Devi wife of Durga Singh, D/o Late Shiveshakar Verma,
resident of Railway Traffic Colony (Near Railway Running
Room), P.O. and P.S. Bagbera, Town Jamshedpur, District East
Singhbhum ... ... Opposite Parties
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. D.K. Chakravorty, Advocate
For the O.P. No. : Mr. Girish Mohan Singh, Advocate
For the State : Mr. Vishwanath Ray, A.P.P.
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08/15.02.2024 Learned counsel for the parties are present.
2. This petition has been filed against the ex-parte judgment and order
dated 12.04.2022 passed by the learned Additional Principal Judge, Additional
Family Court, No. 2, Jamshedpur in Original Maintenance Case No. 159 of
2019 whereby the petition filed by the opposite party no. 2 under section 125
Cr. P.C. has been allowed and the petitioner has been directed to pay a sum of
Rs. 20,000/- per month to the opposite party No. 2 as monthly allowance by
10th of each succeeding month. There is a direction to pay the maintenance
amount from the date of the application. The direction issued by the learned
court below as contained in paragraph no. 11 is quoted as under:-
"11. That the petition of the applicant Sima Devi U/s 125 Cr.
P.C. is allowed. And accordingly the O.P. namely Durga Singh is
directed to pay Rs. 20,000/- per month (Rs. Twenty thousand per
month) to his wife as monthly maintenance allowance by the 10th
of each succeeding month. And the maintenance amount will be
payable from the date of application. O.P. is further directed to
make payment of the amount towards arrears in ten equal
installments within ten months starting from May 2022 or else it
will be recovered through the process of the court."
3. The learned counsel for the petitioner has submitted that the petitioner is
aggrieved by the quantum of maintenance as fixed by the learned court below.
The relationship of husband and wife is not in dispute. There were two children
born out of the wedlock. One child is with opposite party No. 2 and one is with
the petitioner. He has also submitted that the maintenance has been fixed by
taking gross pay of Rs. 62,064/- which was reflecting in month of July 2018
which also included yearly educational allowance over and above salary of the
petitioner. The learned counsel has also submitted that the impugned order was
passed on 12.04.2022 and the compliance of the judgment passed by the
Hon'ble Supreme Court in the case of Rajnesh versus Neha reported in (2021)
2 SCC 324 has not been done in as much as the necessary affidavit of
disclosure of assets and liabilities as annexed to the aforesaid judgment was
never filed though there was a mandate to file necessary affidavit in all the
pending proceedings relating to maintenance also.
4. The learned counsel has also submitted that he has brought on record a
sale deed wherein a property was purchased in the name of opposite party No.
2 and the petitioner claims that the consideration of the property covered by the
sale deed was paid by the petitioner. The learned counsel submits that the
quantum could at best have been Rs. 10,000/- per month and not 20,000/- per
month.
5. The learned counsel on instructions from the petitioner who is physically
present in this Court has submitted that the matter may be remitted to the
learned court below and submits that the arrear of maintenance @ Rs. 10,000/-
will be paid to the opposite party No. 2 subject to final outcome of the quantum
which will may be ultimately fixed by the learned court below. He has also
submitted that he has no objection if any time frame is fixed for the said
purpose.
6. Learned counsel for the opposite party No. 2 has opposed the prayer of
the petitioner and has submitted that the petitioner has stated in paragraph 4 of
the petition that he was aware but his Advocate did not inform the petitioner
and did not file any show cause on behalf of the petitioner. He submits that the
statement indicates that the petitioner was served with the notice and he
purposely did not participate in the proceedings and now it is not open to him
to have any grievance by stating that the proceeding was ex-parte. The learned
counsel submits that the impugned order does not call for any interference in
revisional jurisdiction. The learned counsel has also submitted that the pay slip
has been rightly appreciated by the learned court below and the same is an
unimpeachable and undisputed document on record and there is no illegality or
perversity in the impugned order. However, so far as the direction contained in
the judgment passed by the Hon'ble Supreme Court in the case of Rajnesh
versus Neha (supra) is concerned, admittedly the compliance of the same has
not been done.
7. Some of the important observations and directions issued by the Hon'ble
Supreme Court in the case of Rajnesh v. Neha, (2021) 2 SCC 324 which are
relevant for the present case are as under: -
72. Keeping in mind the need for a uniform format of Affidavit of
Disclosure of Assets and Liabilities to be filed in maintenance
proceedings, this Court considers it necessary to frame guidelines in
exercise of our powers under Article 136 read with Article 142 of the
Constitution of India:
72.1. (a) The Affidavit of Disclosure of Assets and Liabilities
annexed at Enclosures I, II and III of this judgment, as may be
applicable, shall be filed by the parties in all maintenance
proceedings, including pending proceedings before the Family
Court/District Court/Magistrate's Court concerned, as the case may
be, throughout the country;
72.2. (b) The applicant making the claim for maintenance will be
required to file a concise application accompanied with the Affidavit
of Disclosure of Assets;
72.3. (c) The respondent must submit the reply along with the
Affidavit of Disclosure within a maximum period of four weeks. The
courts may not grant more than two opportunities for submission of
the Affidavit of Disclosure of Assets and Liabilities to the respondent.
If the respondent delays in filing the reply with the affidavit, and
seeks more than two adjournments for this purpose, the court may
consider exercising the power to strike off the defence of the
respondent, if the conduct is found to be wilful and contumacious in
delaying the proceedings. On the failure to file the affidavit within
the prescribed time, the Family Court may proceed to decide the
application for maintenance on the basis of the affidavit filed by the
applicant and the pleadings on record;
72.4. (d) The above format may be modified by the court concerned,
if the exigencies of a case require the same. It would be left to the
judicial discretion of the court concerned to issue necessary
directions in this regard.
72.5. (e) If apart from the information contained in the Affidavits of
Disclosure, any further information is required, the court concerned
may pass appropriate orders in respect thereof.
72.6. (f) If there is any dispute with respect to the declaration made
in the Affidavit of Disclosure, the aggrieved party may seek
permission of the court to serve interrogatories, and seek production
of relevant documents from the opposite party under Order 11 CPC.
On filing of the affidavit, the court may invoke the provisions of
Order 10 CPC or Section 165 of the Evidence Act, 1872, if it
considers it necessary to do so. The income of one party is often not
within the knowledge of the other spouse. The court may invoke
Section 106 of the Evidence Act, 1872 if necessary, since the income,
assets and liabilities of the spouse are within the personal knowledge
of the party concerned.
72.7. (g) If during the course of proceedings, there is a change in the
financial status of any party, or there is a change of any relevant
circumstances, or if some new information comes to light, the party
may submit an amended/supplementary affidavit, which would be
considered by the court at the time of final determination.
72.8. (h) The pleadings made in the applications for maintenance
and replies filed should be responsible pleadings; if false statements
and misrepresentations are made, the court may consider initiation
of proceeding under Section 340 CrPC, and for contempt of court.
72.9. (i) In case the parties belong to the economically weaker
sections ("EWS"), or are living below the poverty line ("BPL"), or
are casual labourers, the requirement of filing the affidavit would be
dispensed with.
72.10. (j) The Family Court/District Court/Magistrate's Court
concerned must make an endeavour to decide the IA for interim
maintenance by a reasoned order, within a period of four to six
months at the latest, after the Affidavits of Disclosure have been filed
before the court.
72.11. (k) A professional Marriage Counsellor must be made
available in every Family Court.
III. Criteria for determining quantum of maintenance
77. The objective of granting interim/permanent alimony is to ensure
that the dependent spouse is not reduced to destitution or vagrancy
on account of the failure of the marriage, and not as a punishment to
the other spouse. There is no straitjacket formula for fixing the
quantum of maintenance to be awarded.
78. The factors which would weigh with the court inter alia are the
status of the parties; reasonable needs of the wife and dependent
children; whether the applicant is educated and professionally
qualified; whether the applicant has any independent source of
income; whether the income is sufficient to enable her to maintain
the same standard of living as she was accustomed to in her
matrimonial home; whether the applicant was employed prior to her
marriage; whether she was working during the subsistence of the
marriage; whether the wife was required to sacrifice her employment
opportunities for nurturing the family, child rearing, and looking
after adult members of the family; reasonable costs of litigation for a
non-working wife.
79. In Manish Jain v. Akanksha Jain this Court held that the
financial position of the parents of the applicant wife, would not be
material while determining the quantum of maintenance. An order of
interim maintenance is conditional on the circumstance that the wife
or husband who makes a claim has no independent income, sufficient
for her or his support. It is no answer to a claim of maintenance that
the wife is educated and could support herself. The court must take
into consideration the status of the parties and the capacity of the
spouse to pay for her or his support. Maintenance is dependent upon
factual situations; the court should mould the claim for maintenance
based on various factors brought before it.
80. On the other hand, the financial capacity of the husband, his
actual income, reasonable expenses for his own maintenance, and
dependent family members whom he is obliged to maintain under the
law, liabilities if any, would be required to be taken into
consideration, to arrive at the appropriate quantum of maintenance
to be paid. The court must have due regard to the standard of living
of the husband, as well as the spiralling inflation rates and high
costs of living. The plea of the husband that he does not possess any
source of income ipso facto does not absolve him of his moral duty to
maintain his wife if he is able -bodied and has educational
qualifications.
81. A careful and just balance must be drawn between all relevant
factors. The test for determination of maintenance in matrimonial
disputes depends on the financial status of the respondent, and the
standard of living that the applicant was accustomed to in her
matrimonial home. The maintenance amount awarded must be
reasonable and realistic, and avoid either of the two extremes i.e.
maintenance awarded to the wife should neither be so extravagant
which becomes oppressive and unbearable for the respondent, nor
should it be so meagre that it drives the wife to penury. The
sufficiency of the quantum has to be adjudged so that the wife is able
to maintain herself with reasonable comfort.
82. Section 23 of the HAMA provides statutory guidance with respect
to the criteria for determining the quantum of maintenance.
Subsection (2) of Section 23 of the HAMA provides the following
factors which may be taken into consideration : (i) position and
status of the parties, (ii) reasonable wants of the claimant, (iii) if the
petitioner/claimant is living separately, the justification for the same,
(iv) value of the claimant's property and any income derived from
such property, (v) income from claimant's own earning or from any
other source.
83. Section 20(2) of the DV Act provides that the monetary relief
granted to the aggrieved woman and/or the children must be
adequate, fair, reasonable, and consistent with the standard of living
to which the aggrieved woman was accustomed to in her
matrimonial home.
84. The Delhi High Court in Bharat Hegde v. Saroj Hegde laid down
the following factors to be considered for determining maintenance :
(SCC OnLine Del para 8)
"1. Status of the parties.
2. Reasonable wants of the claimant.
3. The independent income and property of the claimant.
4. The number of persons, the non-applicant has to maintain.
5. The amount should aid the applicant to live in a similar lifestyle as
he/she enjoyed in the matrimonial home.
6. Non-applicant's liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical
attendance and treatment, etc. of the applicant.
8. Payment capacity of the non-applicant.
9. Some guesswork is not ruled out while estimating the income of
the non-applicant when all the sources or correct sources are not
disclosed.
10. The non-applicant to defray the cost of litigation.
11. The amount awarded under Section 125 CrPC is adjustable
against the amount awarded under Section 24 of the Act."
85. Apart from the aforesaid factors enumerated hereinabove,
certain additional factors would also be relevant for determining the
quantum of maintenance payable.
(a) Age and employment of parties
86. In a marriage of long duration, where parties have endured the
relationship for several years, it would be a relevant factor to be
taken into consideration. On termination of the relationship, if the
wife is educated and professionally qualified, but had to give up her
employment opportunities to look after the needs of the family being
the primary caregiver to the minor children, and the elder members
of the family, this factor would be required to be given due
importance. This is of particular relevance in contemporary society,
given the highly competitive industry standards, the separated wife
would be required to undergo fresh training to acquire marketable
skills and retrain herself to secure a job in the paid workforce to
rehabilitate herself. With advancement of age, it would be difficult
for a dependent wife to get an easy entry into the workforce after a
break of several years.
(b) Right to residence
87. Section 17 of the DV Act grants an aggrieved woman the right to
live in the "shared household". Section 2(s) defines "shared
household" to include the household where the aggrieved woman
lived at any stage of the domestic relationship; or the household
owned and rented jointly. or singly by both, or singly by either of the
spouses; or a joint family house, of which the respondent is a
member.
88. The right of a woman to reside in a "shared household" defined
under Section 2(s) entitles the aggrieved woman for right of
residence in the shared household, irrespective of her having any
legal interest in the same. This Court in Satish Chander Ahuja v.
Sneha Ahuja held that "shared household" referred to in Section
2(s) is the shared household of the aggrieved person where she was
living at the time when the application was filed, or at any stage
lived in a domestic relationship. The living of the aggrieved woman
in the shared household must have a degree of permanence. A mere
fleeting or Page: 374 casual living at different places would not
constitute a "shared household". It is important to consider the
intention of the parties, nature of living, and nature of the household,
to determine whether the premises is a "shared household". Section
2(s) read with Sections 17 and 19 of the DV Act entitles a woman to
the right of residence in a shared household, irrespective of her
having any legal interest in the same. There is no requirement of law
that the husband should be a member of the joint family, or that the
household must belong to the joint family, in which he or the
aggrieved woman has any right, title or interest. The shared
household may not necessarily be owned or tenanted by the husband
singly or jointly.
89. Section 19(1)(f) of the DV Act provides that the Magistrate may
pass a residence order inter alia directing the respondent to secure
the same level of alternate accommodation for the aggrieved woman
as enjoyed by her in the shared household. While passing such an
order, the Magistrate may direct the respondent to pay the rent and
other payments, having regard to the financial needs and resources
of the parties.
(c) Where wife is earning some income
90. The courts have held that if the wife is earning, it cannot operate
as a bar from being awarded maintenance by the husband. The
courts have provided guidance on this issue in the following
judgments:
90.1. In Shailja v. Khobbanna , this Court held that merely because
the wife is capable of earning, it would not be a sufficient ground to
reduce the maintenance awarded by the Family Court. The court has
to determine whether the income of the wife is sufficient to enable
her to maintain herself, in accordance with the lifestyle of her
husband in the matrimonial home. Sustenance does not mean, and
cannot be allowed to mean mere survival.
90.2. In Sunita Kachwaha v. Anil Kachwaha the wife had a
postgraduate degree, and was employed as a teacher in Jabalpur.
The husband raised a contention that since the wife had sufficient
income, she would not require financial assistance from the husband.
The Supreme Court repelled this contention, and held that merely
because the wife was earning some income, it could not be a ground
to reject her claim for maintenance.
90.3. The Bombay High Court in Sanjay Damodar Kale v. Kalyani
Sanjay Kale while relying upon the judgment in Sunita Kachwaha ,
held that neither the mere potential to earn, nor the actual earning of
the wife, howsoever meagre, is sufficient to deny the claim of
maintenance.
90.4. An able-bodied husband must be presumed to be capable of
earning sufficient money to maintain his wife and children, and
cannot contend that he is not in a position to earn sufficiently to
maintain his family, as held by the Delhi High Court in Chander
Parkash v. Shila Rani . The onus is on the husband to establish with
necessary material that there are sufficient grounds to show that he
is unable to maintain the family, and discharge his legal obligations
for reasons beyond his control. If the husband does not disclose the
exact amount of his income, an adverse inference may be drawn by
the court.
90.5. This Court in Shamima Farooqui v. Shahid Khan cited the
judgment in Chander Parkash with approval, and held that the
obligation of the husband to provide maintenance stands on a higher
pedestal than the wife. (d) Maintenance of minor children
91. The living expenses of the child would include expenses for food,
clothing, residence, medical expenses, education of children. Extra
coaching classes or any other vocational training courses to
complement the basic education must be factored in, while awarding
child support. Albeit, it should be a reasonable amount to be
awarded for extracurricular/coaching classes, and not an overly
extravagant amount which may be claimed.
92. Education expenses of the children must be normally borne by
the father. If the wife is working and earning sufficiently, the
expenses may be shared proportionately between the parties.
(e) Serious disability or ill health
93. Serious disability or ill health of a spouse, child/children from
the marriage/dependent relative who require constant care and
recurrent expenditure, would also be a relevant consideration while
quantifying maintenance.
117. Section 125(3) CrPC provides that if the party against whom
the order of maintenance is passed fails to comply with the order of
maintenance, the same shall be recovered in the manner as provided
for fines, and the Magistrate may award sentence of imprisonment
for a term which may extend to one month, or until payment,
whichever is earlier.
VI. Final Directions
Discussion and Directions on Enforcement of orders of
Maintenance
125. The order or decree of maintenance may be enforced like a
decree of a civil court, through the provisions which are available for
enforcing a money decree, including civil detention, attachment of
property, etc. as provided by various provisions of the CPC, more
particularly Sections 51, 55, 58, 60 read with Order 21.
126. Striking off the defence of the respondent is an order which
ought to be passed in the last resort, if the courts find default to be
wilful and contumacious, particularly to a dependent unemployed
wife, and minor children. Contempt proceedings for wilful
disobedience may be initiated before the appropriate court.
127. In view of the foregoing discussion as contained in Part B -- I
to V of this judgment, we deem it appropriate to pass the following
directions in exercise of our powers under Article 142 of the
Constitution of India.
(a) Issue of overlapping jurisdiction
128. To overcome the issue of overlapping jurisdiction, and avoid
conflicting orders being passed in different proceedings, it has
become necessary to issue directions in this regard, so that there is
uniformity in the practice followed by the Family Courts/District
Courts/Magistrate Courts throughout the country. We direct that:
128.1. (i) Where successive claims for maintenance are made by a
party under different statutes, the court would consider an
adjustment or set-off, of the amount awarded in the previous
proceeding(s), while determining whether any further amount is to
be awarded in the subsequent proceeding.
128.2. (ii) It is made mandatory for the applicant to disclose the
previous proceeding and the orders passed therein, in the subsequent
proceeding.
128.3. (iii) If the order passed in the previous proceeding(s) requires
any modification or variation, it would be required to be done in the
same proceeding.
(b) Payment of Interim Maintenance
129. The Affidavit of Disclosure of Assets and Liabilities annexed as
Enclosures I, II and III of this judgment, as may be applicable, shall
be filed by both parties in all maintenance proceedings, including
pending proceedings before the Family Court/District
Court/Magistrates Court concerned, as the case may be, throughout
the country.
(c) Criteria for determining the quantum of maintenance
130. For determining the quantum of maintenance payable to an
applicant, the court shall take into account the criteria enumerated
in Part B -- III of the judgment. The aforesaid factors are however
not exhaustive, and the court concerned may exercise its discretion
to consider any other factor(s) which may be necessary or of
relevance in the facts and circumstances of a case.
(d) Date from which maintenance is to be awarded
131. We make it clear that maintenance in all cases will be awarded
from the date of filing the application for maintenance, as held in
Part B -- IV above.
(e) Enforcement/Execution of orders of maintenance
132. For enforcement/execution of orders of maintenance, it is
directed that an order or decree of maintenance may be enforced
under Section 28-A of the Hindu Marriage Act, 1955; Section 20(6)
of the DV Act; and Section 128 of CrPC, as may be applicable. The
order of maintenance may be enforced as a money decree of a civil
court as per the provisions of the CPC, more particularly Sections
51, 55, 58, 60 read with Order 21.
133. Before we part with this judgment, we note our appreciation of
the valuable assistance provided by the learned Amici Curiae Ms
Anitha Shenoy and Mr Gopal Sankaranarayanan, Senior Advocates
in this case.
134. A copy of this judgment be communicated by the Secretary
General of this Court, to the Registrars of all High Courts, who
would in turn circulate it to all the District Courts in the States. It
shall be displayed on the website of all District Courts/Family
Courts/Courts of Judicial Magistrates for awareness and
implementation.
8. After hearing the learned counsel for the parties and considering the
aforesaid facts and circumstances of this case, this Court finds that the
relationship of husband and wife between the petitioner and the opposite party
No. 2 is not in dispute. It is also not in dispute that the petitioner is an
employee in Railways. The petitioner has come before this Court challenging
the quantum of maintenance and during the course of hearing as per the
petitioner the maintenance ought to have been 10,000/- per month and no more.
It is also the case of the petitioner that one property was purchased in the name
of the opposite party No. 2 and consideration was paid by the petitioner, but no
material as such has been brought on record and such new material cannot be
appreciated in revisional jurisdiction which was certainly not the part of the
records before the learned court below. This Court also finds that in the
judgment passed by the Hon'ble Supreme Court in the case of Rajnesh versus
Neha reported in (2021) 2 SCC 324, various aspects and different provisions
in connection with payment of maintenance/permanent alimony have been
considered in detail and appropriate directions have been issued by the Hon'ble
Supreme Court under Article 142 of the Constitution of India with regard to
filing of necessary affidavit of disclosure of assets and liabilities in terms of
the enclosures I,II and III of the judgment to be filed by the parties in all
maintenance proceedings including those which were pending throughout the
country on 4th November 2020 i.e. date of the judgment. Admittedly the
proceedings in the present case were pending before the learned court below on
the date of the judgment passed by Hon'ble Supreme Court and it was also
reported in the year 2021 in the Supreme Court Cases but while passing the
impugned order on 12.04.2022, the learned Family Court has not taken note of
the aforesaid directions of the Hon'ble Supreme Court which was widely
circulated and consequently the necessary compliance of the directions of the
Hon'ble Supreme Court has not been done which has resulted in dispute with
regard to the quantum of maintenance.
9. This court is of the considered view that even if the petitioner did not
appear before the learned court below, still the necessary disclosure ought to
have been called for by the learned Court below by the opposite party No. 2 in
order to find her financial status, liabilities etc.
10. It also appears that as per the petitioner at best the maintenance could
have been fixed @ Rs. 10,000/- per month and on instruction, the counsel for
the petitioner has submitted that the petitioner is ready to pay @ Rs. 10,000/-
with all arrears subject to final outcome of the case before the learned Court
below if the matter is remanded.
11. Considering the aforesaid facts and circumstances, the impugned order
dated 12.04.2022 cannot be sustained in the eyes of law in view of the non-
compliance of the directions issued by the Hon'ble Supreme Court in the case
of Rajnesh versus Neha (supra) and consequently there has not been complete
disclosure of the assets and liabilities of both the parties. Accordingly, the
impugned order dated 12.04.2022 is hereby set aside and the matter is remitted
to the learned Family Court for fresh consideration.
12. The parties are directed to appear before the learned family court on 12th
March 2024 along with the required affidavit in terms of Rajnesh versus Neha
(supra). The affidavit of the petitioner should also indicate his salary and other
emoluments right from the date of filing of the maintenance case by the
opposite party no.2.
13. The petitioner would also deposit maintenance @ Rs., 10,000/- per
month w.e.f. the month of June 2019 till the month of March 2024 in two
instalments which shall be immediately remitted to the opposite party No. 2 by
the learned family court. The 50% of the arrears be deposited on 12th March
2024 and remaining 50% be deposited on 16th April 2024. The said amount
will be subject to the final outcome of the case before the learned Family
Court. The learned Family Court is directed to pass a final order in accordance
with law latest by 30th April 2024.
14. This revision application is accordingly disposed of.
(Anubha Rawat Choudhary, J.)
Binit
